Va. inmate can challenge denial of Thor’s Hammer

Virginia officials may have violated the constitutional and statutory rights of an inmate when they denied him access to “Thor’s Hammer” — a religious pendant of central significance for his Asatru faith — a federal judge recently ruled.

Inmate Forest Fisher sued the Virginia Department of Corrections and various prison officials after they denied his request for Thor’s Hammer, while allowing inmates of other religions to wear various medallions. Fisher, who proceeded pro se — without an attorney — contended that these actions violated his First Amendment to freely exercise his religious faith, the federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) and his equal-protection rights under the 14th Amendment.

In 2005, Fisher made three requests to possess a Thor’s Hammer, which members of the Asatru faith, a pagan religion of pre-Christian northern Europeans, believe is essential to communicating with the Norse gods. Fisher followed appropriate VDOC procedure in requesting the item. However, a prison official failed to forward his request to the VDOC’s Faith Review Committee — the procedure established under prison policy. Instead, a prison official informed inmate Fisher that the VDOC “does not approve Thors [sic] Hammer medallions for inmates.” When Fisher appealed, prison officials told him that a “statewide ruling” prevented inmates from possessing the medallion.

However, defendants acknowledged in court papers that there was no official policy prohibiting Thor’s Hammers. The defendants contended that the court should reject Fisher’s First Amendment and RLUIPA claims because prison officials were reasonably concerned about institutional safety, saying they feared Thor’s Hammer might be a gang symbol.

However, in his May 25 ruling in Fisher v. Virginia, U.S. Magistrate Michael F. Urbanski took issue with the prison officials’ failure to follow their own procedure in submitting Fisher’s request to the Faith Review Committee. “Had the defendants actually forwarded Fisher’s request for a ‘Thor’s Hammer’ pendant to the FRC [Faith Review Committee], they may have had a legitimate basis on which to found such an argument,” wrote Urbanski.

“However, as they did not, their argument that institutional safety concerns and the appropriate allocation of prison resources necessitated denying his request until it had been reviewed and approved by the FRC wholly lacks merit.”

Urbanski stressed that the defendants’ arguments “flatly ignore the fact that Fisher submitted the appropriate paperwork to the appropriate institutional employee for FRC consideration, but that the employee failed to forward his request as required under the VDOC FRC procedures.”

Because of this, Urbanski ruled that there were enough disputed factual issues to merit a trial on Fisher’s constitutional claims. He also denied the defendants’ request for qualified immunity, a doctrine that enables government officials to avoid liability for constitutional or statutory violations if they do not violate clearly established rights. “The record also establishes that inmates of various other religious doctrines had unimpeded access to various religious medallions, but Asatruans, like Fisher, were denied such faith items because prison administrators were not familiar with them.”

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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